High Court Upholds Genital Mutilation Convictions
'High Court rules female genital mutilation illegal in all forms' The Australian 16/10/2019

The High Court has given a broad interpretation to "female genital mutilation", as it ruled three people convicted of offences against two sisters were improperly acquitted by the NSW Court of Appeal.

Former nurse Kubra Magennis, spiritual leader Shabbir Mohammedbhai Vaziri and the girls' mother were convicted of breaching NSW laws against female genital mutilation in 2015.

The sisters were each allegedly subjected to a "khatna" ceremony, which involved cutting or nicking a young girl's clitoris — the eldest when she was aged between six and eight, and the youngest when she was six.

Their mother and Ms Magennis were charged with having "mutilated the clitoris" of each child. Mr Vaziri was charged with assisting them afterwards.

The trio, all members of the Dawoodi Bohra community, had argued the ceremony was only ritualistic and neither girl had their clitoris nicked or cut.

The NSW Court of Appeal accepted this, and ordered their convictions be replaced with acquittals last year. The appeal judges said the word "mutilates" should be given its ordinary meaning — injury or damage that was more than superficial and which rendered the body part imperfect or irreparably damaged in some way.

The majority of the High Court on Wednesday disagreed.

The judges said the term "otherwise mutilates" had an extended meaning, taking account of the context and purpose of the legislation, which was to criminalise female genital mutilation in its various forms.

A majority of judges also said the term "clitoris" should be construed broadly, to include the fold of skin surrounding it. Chief Justice Susan Kiefel and Justice Pat Keane said the relevant legal section was aimed at criminalising and stopping the practice of "female genital mutilation in all its forms which are productive of injury". They said the NSW Court of Criminal Appeal did not explain why the term 'otherwise mutilates' should have a narrower, more literal meaning, that did not apply to the cutting or nicking of a girl's clitoris, and only where some lasting damage had been inflicted." Difficulties would also attend this construction in practice," they said.

"The medical evidence at trial was that a superficial cut, or incision, of the clitoris would heal well, sometimes bearing little or no evidence of what had occurred. On the Court of Criminal Appeal's construction, it may be taken as intended that even if a child might suffer a painful and distressing experience, no offence is committed unless some defect or damage is apparent. This in turn might require the prosecution to have been brought immediately."

The majority sent the case back to the NSW Court of Appeal to decide whether, even on their construction of the legislation, the jury's guilty verdicts were still unreasonable or unsupported by the evidence.

However, Justice Virginia Bell and Justice Stephen Gageler disagreed with the majority. They said the fact the relevant section used the term "otherwise mutilates" not "otherwise injures" meant that superficial tissue damage that left no visible scarring was not prohibited by it.